MENDEZ v. JOSEPH (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), dated May 8, 2023.  The order denied the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident.  The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  In an order dated May 8, 2023, the Supreme Court denied the motion.  The defendants appeal.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957).  The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to her head under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Zennia v. Ramsey, 208 AD3d 735, 735;  Melika v. Caraballo, 187 AD3d 1173, 1173;  Adams v. Dura Cab Corp., 152 AD3d 634, 635).

The parties’ remaining contentions either are not properly before this Court or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

DILLON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.